A New York Appellate Division heard the case of Lantigua v. Goldstein and Seaport Orthopaedic Associates, P.C recently. Plaintiff Roy Lantigua brought a medical malpractice claim which was ready for trial in 2013; however, the defense, a medical provider, cited new evidence and was allowed to execute another deposition. The evidence was based on documentation from a Facebook account (social media) showing that the plaintiff may have been in much better physical condition then he suggested he was. The posts showed Lantigua was quite active as he walked across a 1.5 mile bridge and posted “having a great workout” during the period where he claimed to be suffering from injury. The appeals court explained that generally the parties in a civil action may “chart their own litigation course”. In order for the Facebook posting to be admissible as evidence, a party may need to produce the person who created or located the information to determine authenticity. Lantigua denied that the posts were from an account he operated. The defense was not able to produce an individual to validate the evidence, so the court deemed it inadmissible.
Both the American Bar Association (ABA) and New York State Bar (NYSBA) have addressed this type of evidence and how critical it is for attorneys representing clients in civil matters to consider the impact of technology. The ABA explained that lawyers should maintain an understanding of how relevant technology can impact cases; particularly regarding authentication of web-sourced evidence which can be potentially manipulated. The Federal Rules of Civil Procedure classify social media evidence as information that is “electronically stored”. The same rules apply for this evidence as they would for the more traditional mediums of evidence. The NYSBA issued an opinion reminding attorneys that certain ethical concerns can arise. For example, a lawyer should not anonymously “friend” a party in order to obtain evidence for a case.
Text, photos, and videos from sources such as Facebook, Instagram and YouTube could have effects on a case and are likely permanent records. Data does not simply cease to exist when deleted by the creator. Attorneys should address social media concerns with clients, as failing to do so could place you at a disadvantage. The social media activity of spouses, acquaintances and co-workers may potentially be subject to scrutiny. The New York Law Journal outlined a series of suggestions regarding the topic:
- Attorneys should advice clients to review their social media accounts to be certain that the settings associated with privacy and security are being fully employed
- Even when accounts are in “private” modes, the information contained has the potential to surface
- Clients should be encouraged to limit posts and photos throughout the duration of the case
- It may be appropriate for clients to remove certain postings; however, they may still exist on the pages of friends and family
- Photographs and videos that are posted may be from many years prior. Never assume that a newly posted photo was necessarily taken recently.